Last week several of America's biggest corporations spoke out in favor of gay rights and against Indiana's Religious Freedom Restoration Act. Writing at The New York Times, liberal pundit Timothy Egan responded to those sentiments by mocking the very idea of corporate political speech.
"Since when," Egan scoffed, "did [corporations] start spouting off about the deeply held convictions guiding their corporate consciences?" He's got an answer:
You can blame last year's Supreme Court decision in the Hobby Lobby case for unleashing a herd of ponies that have gone off in quite unpredicted directions. There, in a partisan 5-to-4 ruling straight from Republican fever nests, the court gave certain corporations the right to challenge laws that they claim violate their religious beliefs.
In reality, the phenomenon of corporations expressing "deeply held convictions" about political issues dates back somewhat further than 2013. For example, the New York Times Company, a corporation, litigated and prevailed at the U.S. Supreme Court in several landmark free speech cases decided some five decades ago. More recently, as The New York Times itself happily reported in 2003, "corporate America put on a remarkable display of support for affirmative action when more than 60 companies signed briefs this year backing up the University of Michigan's use of race as a factor in deciding who can attend its law school." Those pro-affirmative action briefs were submitted to the Supreme Court in Grutter v. Bollinger by corporations, acting in their capacity as corporations. Hobby Lobby had nothing to do with it.
But that's not the end of Egan's troubles. A few paragraphs later, he made another glaring error. "In 2010," he asserted, referring to the Supreme Court's Citizens United decision, "five judges created the notion of corporate personhood."
In fact, the U.S. Supreme Court has accepted the notion of corporate personhood in constitutional cases dating back more than a century. In its 1897 decision in Gulf, Colorado and Santa Fe Railroad Company v. Ellis, for example, the Court said that it was "well-settled that corporations are persons within the provisions of the Fourteenth Amendment." Citizens United accomplished several things, but creating the notion of corporate personhood was simply not one of them.
Judging by the tone of his op-ed, Egan seems to have thought he was launching a devastating attack on corporate power. But thanks to his lousy grasp of the facts, he only managed to hurt himself.
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